SCO V. IBM - Free Software and Open Source Community Reaction

Free Software and Open Source Community Reaction

The lawsuit caused moral indignation and outrage in the free software and open source communities, who consider SCO's claims to be without merit and even cynically dishonest. Open source advocates' arguments include:

• that SCO does not even own the code in question. SCO has often called themselves "The owner of the UNIX operating system." But that claim is dubious at best. SCO certainly has no clear claim to SVR4 code. This view is now supported by the jury verdict in SCO v. Novell.
• that the Linux operating system was unlikely to contain UNIX code, as it had been written from scratch by hundreds of collaborators, with a well-documented provenance and revision history that was entirely in the public view;
• that it made no technical sense to incorporate SCO UNIX code in Linux, as Linux had the technical features that are claimed to have been appropriated already implemented before SCO UNIX had them;
• that even if Linux and SCO UNIX had some code in common, this did not necessarily mean that this code was copied to Linux from SCO UNIX—perhaps the common pieces of code had been legitimately copied from another open source operating system, perhaps a BSD-derived one, or one of the historical UNIX versions previously released by SCO;
• that Caldera Systems had begun as a Linux company before buying SCO's UNIX business and certain assets related to it, and has added many Linux-like features to SCO UNIX, and any common code may have in fact been copied from Linux into SCO UNIX:
  • and furthermore, that if such reverse copying from Linux itself had occurred, that the distribution of SCO UNIX binaries containing GPL'd contributions may therefore require SCO either to remove their product from the market until GPL'd code has been removed, or to release their source code under the GPL to their users;
• that even if Linux did contain copied SCO UNIX code, the UNIX source code had already been made widely available without a non-disclosure agreement, and therefore had no trade secret status (as a judge found in USL v. BSDi);
• that even if Linux did contain some UNIX code, the SCO Group had lost any right to sue IBM for trade secret or other intellectual property infringement by distributing Linux itself (their Caldera OpenLinux distribution) under the GNU General Public License (GPL), both before and after their announcement, which precludes them from pursuing any other user of Linux.

SCO and its officers have been the subject of much criticism by the free software community, some of whom have stated that SCO's behavior may amount to illegal conduct. SEC filings show that senior SCO executives dumped their personal holdings in SCO shortly after counter-suits were filed by IBM and Red Hat. SCO Group's CEO Darl McBride has been the subject of particular criticism, because of his extreme statements to the press.

On March 10, 2003, the Open Source Initiative (OSI) released a position paper on the SCO v. IBM complaint, written by Eric S. Raymond, president of the OSI and author of The Cathedral and the Bazaar.

On May 16, 2003, Groklaw, a website founded by journalist/paralegal Pamela Jones began covering the SCO litigation on a daily basis, and became a voice for the community to express its views of SCO's claims, as well as being an experiment in applying Open Source principles to legal research. The SCO Group has singled the site out as a particular thorn in its side.

On May 30, 2003, Linus Torvalds, developer of the Linux kernel, was quoted as saying, regarding the case:

Quite frankly, I found it mostly interesting in a Jerry Springer kind of way. White trash battling it out in public, throwing chairs at each other. SCO crying about IBM's other women. ... Fairly entertaining. —, paragraph 7

The Inquirer reported on June 15, 2003, that an unnamed Linux kernel programmer has written to SCO, threatening action based on their distribution of a Linux distribution that, according to their own claims, contains code not licensed under the GPL. According to the letter reproduced there, the programmer claimed that SCO's doing so was an infringement of his own copyright. SCO's response to this letter is not known.

In an interview on June 23, 2003, Torvalds responded to SCO's allegation that Linux development had no process for vetting kernel contributions:

I allege that SCO is full of it, and that the Linux process is already the most transparent process in the whole industry. Let's face it, nobody else even comes close to being as good at showing the evolution and source of every single line of code out there.

On June 27, 2003, Eben Moglen, the counsel for the Free Software Foundation, released a more complete statement regarding the SCO lawsuit. In this statement, he reiterates many of the points made above, and states that:

As to its trade secret claims, which are the only claims actually made in the lawsuit against IBM, there remains the simple fact that SCO has for years distributed copies of the kernel, Linux, as part of GNU/Linux free software systems. There is simply no legal basis on which SCO can claim trade secret liability in others for material it widely and commercially published itself under a license that specifically permitted unrestricted copying and distribution.

On July 31, 2003, the Open Source Development Labs released a position paper on the ongoing conflict, written by the FSF's Eben Moglen.